D. K. Srivastava vs Housing & Urban Dev. Coporation Ltd. (HUDCO)

Anil Kshetarpal, J

Through the present Petition, the Petitioner assails the order dated 11.10.2018 [hereinafter referred to as „Impugned Order‟] passed by  the  Central  Administrative  Tribunal,  Principal  Bench,  New  Delhi in O.A. No. 2659/2014, [hereinafter referred to as „Tribunal‟] whereby the challenge to the memorandum of charge dated 12.10.2010, the dismissal Order dated 29.09.2011, and the appellate order dated 06.02.2014, came to be rejected.

The controversy in the present Petition is whether the disciplinary proceedings, culminating in the Petitioner‟s dismissal from service on the allegation that he had lodged a false complaint/FIR imputing demand of illegal gratification to senior officers of HUDCO, were sustainable in law; whether the ex parte inquiry stood vitiated for want of fair opportunity; and whether the Tribunal was justified in declining interference.

FACTUAL MATRIX

The  Petitioner  was  appointed  as  a  Law  Officer  in  HUDCO  on 17.01.1990. In the late 1990s, on the basis of two complaints made by his wife, criminal proceedings came to be registered against him, leading to his arrest and consequential suspension from service, which remained  in  force  from  08.09.1997  to  17.02.2009.  He  was  thereafter reinstated and posted to the HUDCO Jaipur Regional Office, where he joined  with  effect  from  01.04.2009.  Upon  rejoining  service,  disputes arose regarding the treatment of the suspension period and the release of arrears of pay and increments relatable thereto

The Petitioner maintained that the aforesaid benefits were being withheld  contrary  to  the  applicable  rules.  It  was  in  the  course  of  this continuing  dispute  that  he levelled allegations that senior officers  of HUDCO had demanded illegal gratification for the release of his annual increments and other service-related benefits.

While posted at Jaipur, the Petitioner filed a criminal complaint before the Additional Chief Judicial Magistrate, Jaipur, invoking Section 156(3) CrPC. Pursuant to the complaint being forwarded to the police for investigation, FIR No. 318/2009 dated 05.12.2009 under Sections 218, 406, 403, 409, 467, 468, 120(B) of the IPC, came to be registered at Police Station Jyoti Nagar, Jaipur city (South). The Petitioner in the FIR alleged that senior officers of HUDCO had demanded  illegal  gratification  of  Rs.  one  lakh  each  for  release  of  his annual increments and other service-related benefits, and that, upon refusal, he was harassed through issuance of memos.

The investigation in the aforesaid FIR culminated in Final Report No. 43/10 dated 08.04.2010, filed by the police recommending closure  of  the  case,  wherein  the  allegations  levelled  by the  Petitioner were  treated  as  being  of  a  civil  nature.  The  protest  petition  preferred by the Petitioner against the said final report was dismissed by the learned ACJM, by order dated 14.07.2010, inter alia observing that the complaint did not specify when, where, or before whom the alleged  demand  of  bribe  was  made,  and  that  the  grievance  regarding pay increments and service benefits was, in substance, a departmental matter.

The Final Report for closure was accordingly accepted. Thereafter, the Respondent-Corporation issued the memorandum of charge dated 12.10.2010 to the Petitioner, alleging that he had lodged a  false  complaint/FIR  imputing  demand  of  illegal  gratification  to the senior officers of the HUDCO, and had thereby committed misconduct under Rule 4(1)(iii), 5(5) and 5(42) of the HUDCO Conduct, Discipline and Appeal (CDA) Rules.

The Petitioner submitted his reply dated 09.11.2010 to the charge memorandum. An Inquiry Officer was thereafter appointed on 10.02.2011. In the meantime, the Petitioner assailed the charge memorandum before the Central Administrative Tribunal, Jaipur Bench, by filing O.A. No. 140/2011. During the pendency of the said proceedings, he was transferred from the Jaipur Regional Office to the Guwahati Regional Office on 22.02.2011. As no interim stay was granted, the disciplinary proceedings continued.

During the inquiry, notices of hearing were issued to the Petitioner  through  registered/speed  post  at  the  addresses  available  on record.  Notice  of the  proceedings was also published on  the official website of HUDCO as well as in national newspapers, The Indian Express and Dainik Jagran. The Petitioner, however, did not participate in the inquiry proceedings. The inquiry accordingly proceeded ex parte, Management witnesses were thereafter examined, and the inquiry culminated in the report dated 29.07.2011 holding the charge proved. A copy of the findings of the Inquiry Officer was thereafter  furnished  to  the  Petitioner  on  11.08.2011,  but  no  response came to be submitted by him.

On the basis of the inquiry report, the disciplinary authority imposed  upon  the  Petitioner  the  penalty of  dismissal  from service  by order dated 29.09.2011. The challenge to the charge memorandum was thereafter treated as infructuous by the Jaipur Bench, with liberty to assail his dismissal before the appropriate authority. The Petitioner thereafter preferred an appeal dated 09.05.2012 before the HUDCO Board  through  the  Managing  Director,  which  came  to  be  rejected  by the Appellate order dated 06.02.2014. Aggrieved thereby, he instituted O.A. No. 2659/2014 before the Tribunal, which has been dismissed by the Impugned Order.

The  issue  is  whether  the  disciplinary  proceedings,  culminating in the Petitioner‟s dismissal from service on the allegation that he had lodged a false complaint/FIR imputing demand of illegal gratification to  senior  officers  of  HUDCO,  warrant  interference  in  the  exercise  of the writ jurisdiction.

SUBMISSIONS ON BEHALF OF THE PETITIONER

Petitioner  appeared  in-person  and  submitted  that  the  Impugned Order  of  the  Tribunal  is  unsustainable  both  on  facts  and  in  law.  It  is submitted that the Tribunal has proceeded on patent misreadings of the  record  in  observing that  no  reply to  the  charge  memorandum had been filed and in treating the Original Application as belated.

It is further submitted that the very foundation of the disciplinary proceedings is flawed, since the criminal proceedings had culminated in a Closure Report of the Police treating the matter as one of civil nature, and not in any finding that the complaint/FIR was false.

Petitioner submits that the inquiry stood vitiated for want of  an effective  opportunity,  particularly  in  the  backdrop  of  the  Petitioner‟s transfer to Guwahati during the pendency of the inquiry, the plea regarding  non-payment  of  subsistence  allowance/salary,  and  the  non- consideration of his representations seeking examination of the concerned SHO and change of the Inquiry Officer. It is also urged that the  appellate  authority  failed  to  deal  with  the  Petitioner‟s  grounds  in accordance  with  the  law,  and  that  the  penalty  of  dismissal  is  grossly disproportionate.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

Per contra, learned counsel for the Respondent submits that no ground warranting interference is made out. It is contended that the charge  cannot  be  said  to  be  incompetent  in  law,  the  allegation  being not of mere resort to the criminal process, but of making false imputations of corruption against senior officers of the Corporation. Learned counsel further submits that repeated notices of hearing  were issued to the Petitioner and were also published on the official website of  HUDCO  and  in  newspapers,  yet  he  chose  not  to  participate  in  the inquiry.  It  is  submitted  that  the Petitioner  had  been  paid  subsistence allowance during the period of suspension and salary after reinstatement till his transfer on 22.02.2011, and that no salary was payable thereafter since he did not join office at Guwahati. The Respondent submits that the transfer was routine, bore no nexus to the disciplinary proceedings, and the penalty imposed upon the Petitioner does not warrant interference in writ jurisdiction.

ANALYSIS AND FINDINGS

At  the  outset,  it  requires  to  be  noticed  that,  in  exercise  of  Writ jurisdiction, the Court does not sit in appeal over findings recorded in a departmental inquiry. Interference is confined to recognised parameters, such as lack of jurisdiction, violation of principles of natural  justice,  findings  based  on  no  evidence,  perversity,  or  penalty so disproportionate as to warrant correction in judicial review.

Tested on the aforesaid parameters, the charge memorandum cannot, at the threshold, be said to be incompetent in law merely because it arose out of a complaint made by the Petitioner to the criminal court and the police. The gravamen of the charge framed against the Petitioner was not of having invoked the criminal process per se, but of having made false imputations of demand of illegal gratification against senior officers of HUDCO, thereby attracting misconduct under the HUDCO (CDA) Rules.

At the same time,  the criminal record requires careful  scrutiny. The Final Report treated the matter as being of a civil nature. The protest  petition,  and  the  revision  thereagainst,  came  to  be  rejected  on the footing that the allegation of demand lacked material particulars inasmuch as neither the complaint nor the supporting witness statements  disclosed  with  clarity  when,  where,  and  before  whom  the amount was demanded as bribe, and that the grievance regarding pay increments, arrears, and allied service benefits was, in substance, departmental in character. The revisional court, in affirming the order of the ACJM, expressly found no illegality or irregularity in that reasoning.

These  proceedings  undoubtedly  cast  doubts  on  the  Petitioner‟s allegations, though they did not, by themselves, amount to a definitive judicial  determination  that  the  complaint  was  knowingly  false  in  the sense proceeded upon by the disciplinary authorities. The disciplinary authority could not, therefore, proceed on the footing that criminal closure, without more, was conclusive of deliberate falsity.

Even  so,  the  disciplinary  conclusion  does  not  rest  solely  upon the criminal closure. The Appellate Authority noticed that, the Petitioner  in  his  reply  dated  09.11.2010,  had  not  substantiated  when, where, and in whose presence the alleged demand of bribe was made. The inquiry report further records that the inquiry proceeded on documentary and oral evidence, including the examination of five management witnesses. Viewed in the light of the Criminal Court orders  and  the  Petitioner‟s  continued  non-participation  in  the  inquiry despite repeated notices, the disciplinary proceedings cannot be characterised as founded on no material whatsoever.

The  challenge  founded  on  denial  of  effective  opportunity  must next be considered. It cannot be said that the Petitioner was shut out of the inquiry at the threshold. It is true that, during the pendency of the disciplinary proceedings, the Petitioner was transferred on 22.02.2011 from Jaipur to Guwahati, and that this aspect formed part of the fairness objection urged before this Court. It is also true that the present petition came to be entertained, at the admission stage, principally on the plea that the Petitioner had not been able to effectively  participate in the inquiry. However, during the course of hearing, that the earlier grievance of non-payment of subsistence allowance for the suspension period stood withdrawn, and that the surviving dispute narrowed to non-payment of salary after transfer on 22.02.2011, which the Respondent attributes to the Petitioner‟s failure to join office at Guwahati. On the record as it stands, these circumstances do not establish such denial of opportunity as would render participation in the inquiry impossible in law.

One part of the inquiry report does, however, call for clear disapproval. The Inquiry Officer observed that the Petitioner‟s non- participation in the inquiry “shows that he has no case to prove his innocence”. That is not a sound statement of principle. Non- participation may justify the inquiry proceeding ex parte, it cannot, by itself, be elevated into substantive proof of guilt. The finding in a disciplinary proceeding must stand on the material relied upon in support of the charge, and not on such an inference alone.

It is also necessary to notice that the inquiry report contains collateral and prejudicial narration regarding the Petitioner‟s past conduct and personal history, which had no direct nexus with the article of charge under inquiry. The inclusion of such material was undesirable. Nevertheless, the conclusion recorded by the Inquiry Officer is said to rest on the charge under inquiry, the Petitioner‟s reply, the criminal proceedings, and the Petitioner‟s non-participation despite notice.

The Appellate Authority, while considering the appeal dated 09.05.2012, adverted to the Petitioner‟s reply dated 09.11.2010, the steps taken in the inquiry, the notices issued, the publication effected, the criminal proceedings culminating in closure, and the gravity of the misconduct as understood by the Board. In the limited ambit of judicial  review,  it  cannot  therefore  be  said  that  the  ultimate  decision remained wholly unsupported by appellate consideration.

The Impugned Order of the Tribunal is, however, not free from factual error. The Tribunal proceeded on the footing that the Petitioner had  not  submitted  any  explanation  to  the  charge  memorandum.  That observation is demonstrably inaccurate. The record shows the existence of the reply  dated 09.11.2010,  both the inquiry  report and the Appellate order expressly advert to it.

Likewise, the observation by the Tribunal that there was a delay of three years in assailing the Appellate order is unsustainable on the face of the record, the Appellate order being dated 06.02.2014 and the proceedings  before  the  Tribunal  themselves  having  been  instituted  as O.A. No. 2659/2014. That observation, therefore, cannot be permitted to stand.

CONCLUSION

Once the aforesaid inaccuracies are excluded, the matter still requires examination of the underlying disciplinary proceedings on its own footing. On that examination, this Court is unable to hold that the Petitioner has established such violation of principles of natural justice, absence of an evidentiary basis, or perversity in the disciplinary or appellate process as would justify interference with the dismissal order dated 29.09.2011 or the Appellate order dated 06.02.2014 in the exercise of writ jurisdiction.

The observations contained in the Impugned Order, to the extent noticed in paragraphs 25 and 26 hereinabove, are set aside and shall stand effaced. Save to that limited extent, no ground for interference with the disciplinary action or the Appellate order is made out.

The present Petition, along with the pending applications, is accordingly dismissed.